Volume IV Part 9 (1/2)
That Story, while in Was.h.i.+ngton, had copiously expressed his changing opinions, as well as his disapproval of Jefferson's Embargo, is certain; for he was ”a very great talker,”[268] and stated his ideas with the volubility of his extremely exuberant nature. ”At this time, as in after life,” declares Story's son, ”he was remarkable for fulness and fluency of conversation. It poured out from his mind ... sparkling, and exhaustless. Language was as a wide open sluice, through which every feeling and thought rushed forth.... It would be impossible to give an idea of his conversational powers.”[269]
It was not strange, then, that Jefferson, who was eager for all gossip and managed to learn everything that happened, or was said to have happened, in Was.h.i.+ngton, heard of Story's a.s.sociation with the Federalists, his unguarded talk, and especially his admiration for the Chief Justice. It was plain to Jefferson that such a person would never resist Marshall's influence.
In Jefferson's mind existed another objection to Story which may justly be inferred from the situation in which he found himself when the problem arose of filling the place on the Supreme Bench vacated by the death of Justice Cus.h.i.+ng. Story had made a profound study of the law of real estate; and, young though he was, no lawyer in America equaled him, and few in England surpa.s.sed him, in the intricate learning of that branch of legal science. This fact was well known to the bar at Was.h.i.+ngton as well as to that of Ma.s.sachusetts. Therefore, the thought of Story on the Supreme Bench, and under Marshall's influence, made Jefferson acutely uncomfortable; for the former President was then engaged in a lawsuit involving questions of real estate which, if decided against him, would, as he avowed, ruin him. This lawsuit was the famous Batture litigation. It was this predicament that led Jefferson to try to control the appointment of the successor to Cus.h.i.+ng, whose death he declared to be ”a G.o.dsend”[270] to him personally; and also to dictate the naming of the district judge at Richmond to the vacancy caused by the demise of Judge Cyrus Griffin.
In the spring of 1810, Edward Livingston, formerly of New York and then of New Orleans, brought suit in the United States Court for the District of Virginia against Thomas Jefferson for damages to the amount of one hundred thousand dollars. This was the same Livingston who in Congress had been the Republican leader in the House when Marshall was a member of that body.[271] Afterwards he was appointed United States Attorney for the District of New York and then became Mayor of that city. During the yellow fever epidemic that scourged New York in 1803, Livingston devoted himself to the care of the victims of the plague, leaving the administration of the Mayor's office to a trusted clerk. In time Livingston, too, was stricken. During his illness his clerk embezzled large sums of the public money. The Mayor was liable and, upon his recovery, did not attempt to evade responsibility, but resigned his office and gave all his property to make good the defalcation. A heavy amount, however, still remained unpaid; and the discharge of this obligation became the ruling purpose of Livingston's life until, twenty years afterward, he accomplished his object.
His health regained, Livingston went to New Orleans to seek fortune anew. There he soon became the leader of the bar. When Wilkinson set up his reign of terror in that city, it was Edward Livingston who swore out writs of habeas corpus for those illegally imprisoned and, in general, was the most vigorous as well as the ablest of those who opposed Wilkinson's lawless and violent measures.[272] Jefferson had been displeased that Livingston had not shown more enthusiasm for him, when, in 1801, the Federalists had tried to elect Burr to the Presidency, and bitterly resented Livingston's interference with Wilkinson's plans to ”suppress treason” in New Orleans.
One John Gravier, a lifelong resident of that city, had inherited from his brother Bertrand certain real estate ab.u.t.ting the river. Between this and the water the current had deposited an immense quant.i.ty of alluvium. The question of the t.i.tle to this river-made land had never been raised, and everybody used it as a sort of common wharf front.
Alert for opportunities to make money with which fully to discharge the defalcation in the New York Mayor's office, Livingston investigated the rightful owners.h.i.+p of the batture, as the alluvial deposit was termed; satisfied himself that the t.i.tle was in Gravier; gave an opinion to that effect, and brought suit for the property as Gravier's attorney.[273]
While the trial of Aaron Burr was in progress in Richmond, the Circuit Court in New Orleans rendered judgment in favor of Gravier,[274] who then conveyed half of his rights to his attorney, apparently as a fee for the recovery of the batture.
Livingston immediately began to improve his property, whereupon the people became excited and drove away his workmen. Governor Claiborne refused to protect him and referred the whole matter to Jefferson. The President did not direct the Attorney-General to bring suit for the possession of the batture--the obvious and the legal form of procedure.
Indeed, the t.i.tle to the property was not so much as examined.
Jefferson did not even take into consideration the fact that, if Livingston was not the rightful owner of the batture, it might belong to the City of New Orleans. He merely a.s.sumed that it was National property; and, hastily acting under a law against squatters on lands belonging to the United States, he directed Secretary of State Madison to have all persons removed from the disputed premises. Accordingly, the United States Marshal was ordered to eject the ”intruder” and his laborers. This was done; but Livingston told his men to return to their work and secured an injunction against the Marshal from further molesting them. That official ignored the order of the court and again drove the laborers off the batture.
Livingston begged the President to submit the controversy to arbitration or to judicial decision, but Jefferson was deaf to his pleas. The distracted lawyer appealed to Congress for relief.[275] That body ignored his pet.i.tion.[276] He then brought suit against the Marshal in New Orleans for the recovery of his property. Soon afterward he brought another in Virginia against Jefferson for one hundred thousand dollars damages. Such, in brief outline, was the beginning of the famous ”Batture Controversy,” in which Jefferson and Livingston waged a war of pamphlets for years.
When he learned that Livingston had begun action against him in the Federal court at Richmond, Jefferson was much alarmed. In antic.i.p.ation of the death of Judge Cyrus Griffin, Governor John Tyler had written Jefferson that, while he ”never did apply for an office,” yet ”Judge Griffin is in a low state of health, and holds my old office.” Tyler continues: ”I really hope the President will chance to think of me ...
in case of accidents, and if an opportunity offers, lay me down softly on a bed of _roses in my latter days_.” He condemns Marshall for his opposition to the War of 1812, and especially for his reputed statement that Great Britain had done nothing to justify armed retaliation on our part.[277] ”Is it possible,” asks Tyler, ”that a man who can a.s.sert this, can have any true sense of sound veracity? And yet these sort of folks retain their stations and consequence in life.”[278]
Immediately Jefferson wrote to President Madison: ”From what I can learn Griffin cannot stand it long, and really the state has suffered long enough by having such a cypher in so important an office, and infinitely the more from the want of any counter-point to the rancorous hatred which Marshall bears to the government of his country, & from the cunning & sophistry within which he is able to enshroud himself. It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall. Tyler, I am certain, would do it.... A milk & water character ... would be seen as a calamity.
Tyler having been the former state judge of that court too, and removed to make way for so wretched a fool as Griffin,[279] has a kind of right of reclamation.”
Jefferson gives other reasons for the appointment of Tyler, and then addresses Madison thus: ”You have seen in the papers that Livingston has served a writ on me, stating damages at 100,000. D... I shall soon look into my papers to make a state of the case to enable them to plead.”
Jefferson hints broadly that he may have to summon as witnesses his ”a.s.sociates in the proceedings,” one of whom was Madison himself.
He concludes this astounding letter in these words: ”It is a little doubted that his [Livingston's] knolege [_sic_] of Marshall's character has induced him to bring this action. His twistifications of the law in the case of Marbury, in that of Burr, & the late Yazoo case shew how dexterously he can reconcile law to his personal bia.s.ses: and n.o.body seems to doubt that he is ready prepared to decide that Livingston's right to the batture is unquestionable, and that I am bound to pay for it with my private fortune.”[280]
The next day Jefferson wrote Tyler that he had ”laid it down as a law”
to himself ”never to embarra.s.s the President with any solicitations.”
Yet, in Tyler's case, says Jefferson, ”I ... have done it with all my heart, and in the full belief that I serve him and the public in urging the appointment.” For, Jefferson confides to the man who, in case Madison named him, would, with Marshall, hear the suit, ”we have long enough suffered under the base prost.i.tution of the law to party pa.s.sions in one judge, and the imbecility of another.
”In the hands of one [Marshall] the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice. Nor can any milk-and-water a.s.sociate maintain his own independence, and by a firm pursuance of what the law really is, extend its protection to the citizens or the public.... And where you cannot induce your colleague to do what is right, you will be firm enough to hinder him from doing what is wrong, and by opposing sense to sophistry, leave the juries free to follow their own judgment.”[281]
Upon the death of Judge Griffin in the following December, John Tyler was appointed to succeed him.
On September 13, 1810, William Cus.h.i.+ng, a.s.sociate Justice of the Supreme Court, died. Only three Federalists now remained on the Supreme Bench, Samuel Chase, Bushrod Was.h.i.+ngton, and John Marshall. The other Justices, William Johnson of South Carolina, Brockholst Livingston of New York, and Thomas Todd of Kentucky, were Republicans, appointed by Jefferson.
The selection of Cus.h.i.+ng's successor would give the majority of the court to the Republican Party for the first time since its organization. That Madison would fill the vacancy by one of his own following was certain; but this was not enough to satisfy Jefferson, who wanted to make sure that the man selected was one who would not fall under Marshall's baleful influence. If Griffin did not die in time, Jefferson's fate in the batture litigation would be in Marshall's hands.
Should Griffin be polite enough to breathe his last promptly and Tyler be appointed in season, still Jefferson would not feel safe--the case might go to the jury, and who could tell what their verdict would be under Marshall's instructions? Even Tyler might not be able to ”hinder”
Marshall ”from wrong doing”; for nothing was more probable than that, no matter what the issue of the case might be, it would be carried to the Supreme Court if any ground for appeal could be found. Certainly Jefferson would take it there if the case should go against him. It was vital, therefore, that the latest vacancy on the Supreme Bench should also be filled by a man on whom Jefferson could depend.
The new Justice must come from New England, Cus.h.i.+ng having presided over that circuit. Republican lawyers there, fit for the place, were at that time extremely hard to find. Jefferson had been corresponding about the batture case with Gallatin, who had been his Secretary of the Treasury and continued in that office under Madison. The moment he learned of Cus.h.i.+ng's death, Jefferson wrote to Gallatin in answer to a letter from that able man, admitting that ”the Batture ... could not be within the scope of the law ... against squatters,” under color of which Livingston had been forcibly ousted from that property. Jefferson adds: ”I should so adjudge myself; yet I observe many opinions otherwise, and in defence against a spada.s.sin it is lawful to use all weapons.” The case is complex; still no unbiased man ”can doubt what the issue of the case ought to be. What it will be, no one can tell.
”The judge's [Marshall's] inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim. His decisions, his instructions to a jury, his allowances and disallowances and garblings of evidence, must all be subjects of appeal.... And to whom is my appeal? From the judge in Burr's case to himself and his a.s.sociate judges in the case of Marbury V. Madison.
”Not exactly, however. I observe old Cus.h.i.+ng is dead.... The event is a fortunate one, and so timed as to be a G.o.dsend to me. I am sure its importance to the nation will be felt, and the occasion employed to complete the great operation they have so long been executing, by the appointment of a decided Republican, with nothing equivocal about him.